MONEY TALES / Cold, Hard...Romance: What we talk about when we talk about prenups

By Rob Baedeker, Special to SF Gate

Published
4:00 am PDT, Monday, August 20, 2007

Years ago, Steven Spielberg paid out a $100 million divorce settlement to actress Amy Irving, who contested their prenuptial agreement. It reportedly had been written on a napkin.

Which raises the obvious question: What does a multi-millionaire have to do to get a piece of paper around here?

You'll excuse the strained humor. It's just that prenuptial agreements can be kind of a touchy subject -- more sensitive, even, than the serviettes they're sometimes scribbled on.

For Chris (not his real name), a 36-year-old San Francisco business owner, the contract he'd asked his fiancee to sign the day before their wedding started to gnaw at him a few weeks into the marriage.

Chris had met his wife-to-be only a few months before they were wed, and his business partner -- as well as some family and friends -- had urged him to consider a premarital agreement, which would stipulate how the couple's finances would be split in case of a divorce.

It was just a precaution, they said, a common-sense measure for someone starting a new company and a new marriage at the same time.

So, Chris found a boilerplate contract on the Internet and asked his fiancee to sign it. She did.

But it bothered him.

"I didn't feel great about how I'd gotten talked into it (by my business partner)," he recalls. "And I didn't feel great about having this contract sitting in a file cabinet in our house. I didn't want to have an escape clause in our relationship. I wanted to be in the mind-set that we are married for life."

Chris and his wife agreed to purge their relationship of the bad vibes emanating from that file cabinet. They talked about ways they could ceremonially dispose of the prenuptial agreement. Maybe by burning it on a mountaintop. Or dropping it from the Golden Gate Bridge.

In the end, like good eco-minded San Franciscans, they threw the contract in the recycling bin.

Now, three years later, they're getting a divorce.

Chris is still not sure how they will divide their assets. He's talking to a lawyer, and he's hopeful "we will be able to come up with a plan."

Without a prenup, Chris' post-marital division of assets will be governed by California law, which, unlike some other states, applies "community property" rule in the case of divorce. According to Tilden Moschetti, a San Francisco family-law attorney, "That means that all the assets, all the debt -- anything that's accumulated during the marriage -- is considered part of the community. So if there's a dissolution, those assets are divided equally between the two (partners)."

Looking back on that moment when he purged his prenuptial papers, Chris says, "I feel like a victim of my own romanticism. I used to think, 'True love is out there and I'm going to end up marrying Sleeping Beauty.'"

But the realities and complications of his marriage changed his mind: "I've taken off the rose-tinted glasses. Marriage is a partnership. My idealism has taken on a new form. It's more of a realistic form -- looking directly at the facts of the situation and saying, 'This is what I want.'"

* * *

About half of marriages end in divorce, according to the U.S. Census Bureau, but when it comes to statistics, most of us like to believe we've somehow earned immunity from the odds.

"No one wants to have the fantasy (of living happily ever after) deflated," says Arlene Dubin, a New York attorney and author of "Prenups for Lovers." "When you do a prenup, you think about the possibility that this relationship is going to end in divorce or death."

But that realism, she says, can strengthen a relationship: "My view is that when people share their financial information ... and think about the possibility that their relationship will end, that makes them more careful about safeguarding their relationship."

As the title of her book implies, Dubin wants to dispel the myths that posit romance and money as antitheses, such as the idea that a prenup reduces marriage to a cold business deal.

"A prenuptial is not the same as a third-party agreement with a stranger," she explains. "You're negotiating with somebody you love, and there has to be a collaborative, passionate element to it."

Dubin's own first marriage ended in a messy divorce. With her second engagement, a prenuptial agreement was a natural choice. It was also an act of love. Dubin keeps her prenup papers in a Tiffany bowl in her living room, along with other romantic reminders of her wedding.

Because they do not need to be registered, statistics on prenuptials are hard to come by, but a 2003 Harvard Law School study by Heather Mahar cited estimates that only 5-10 percent of couples had entered into prenuptial agreements.

Dubin thinks those numbers are increasing; she says she's seen a "cascade" of prenups in her own practice lately, "as people realize the logic and prudence of them" and the stigma dissipates. She expects that trend to continue.

Dubin says, "I think everyone should at least examine the process" of a prenuptial agreement, at the very least so they understand what the laws of their state say about what should happen to a couple's assets if the marriage ends.

* * *

The kinds of values that Chris, Dubin and others talk about when they talk about prenuptial agreements -- qualities like realism, honesty, awareness, and communication -- sound a lot like the attributes that make up a loving relationship.

For some people, though, the particular mixture of money and love represented by a legal contract still doesn't sit right.

"I was furious," he recalls of his fiancee, Tina (not her real name) asking for a contract before their wedding. At her father's suggestion, Luke says, "she brought it up a few months before we were married, and I was really offended. I'm a pretty romantic guy, and it just seemed not romantic at all. It seemed like I wasn't trusted; I took it as a real assault on my character."

Tina was 17 years younger than Luke, and she was a successful professional in her own right. Unlike her fiance, she had always been careful about her finances. In Luke's words, "She's a saver and a planner; I'm a maker and a spender."

Luke's first marriage had ended in divorce, and in the aftermath of that relationship, Luke says, "I really wasn't careful about guarding my own financial assets." He was also paying hefty child support payments and, as he put it, "making a pretty good wage, but living fundamentally like a grad student."

After his initial shock at Tina's proposal, Luke says he "subsequently grew up a little bit." He says he realized that while it can seem unromantic to talk about the end of a relationship at its outset, "what is romantic is listening to your partner, listening to their fear, trying to get past your own fear, and coming to an understanding that is mutually acceptable."

Luke signed the prenup, but even after coming to understand Tina's point of view, he still finds the idea of the contract off-putting. "It just doesn't appeal to me," he says. "Marriage is not a merger."

* * *

Others share Luke's conflicted position. Start talking to people about prenups, I've learned, and the range of responses is as various and complicated as the people involved.

One's reaction, of course, may depend on one's financial status. Attorneys Moschetti and Dubin both say that, in their practices, the partner with more assets usually initiates the prenup. But not always. And in fact the less-well-off partner can benefit from an agreement. A stay-at-home spouse, for example, could stipulate in a prenup that his or her housekeeping time be accounted for if the marriage ends.

This might have been the case for Ron (not his real name), 36, who recently went through a divorce. He had not signed a prenup before his marriage and he thinks he might have had an argument for financial compensation: His wife made a higher salary than he did during their marriage, and he had moved with her when she took a job in another city, sacrificing some of his own career prospects.

But, he says of that potentially lost compensation, "I really don't care at all. Me getting some money now would be like getting a new stereo for a car whose engine is irreparably damaged."

Like the San Francisco businessman, Chris, Ron thinks he was a victim of his own idealistic visions going into the marriage, but he still believes marriage should be about a "general spirit of trust that goes beyond financial contracts."

He thinks a prenuptial agreement would still be "irrelevant" if he were to marry again.

* * *

Conflicted feelings about the way that marriage and money intersect may be a particularly modern form of angst. After all, the idea that one should marry for love is a relatively new concept. As Stephanie Coontz explains in "Marriage, A History," until the late 18th century most societies regarded marriage as primarily an economic and political institution. "For thousands of years," Coontz writes, "the theme song for most weddings could have been, 'What's Love Got to Do With It?'"

Today, though, we tend to want it all: a love-based marriage that can be financially beneficial (or at least not economically detrimental when it ends).

This double-mindedness may be the reason Luke can simultaneously understand his fiancee's logic in wanting a prenup and still feel uneasy about the idea of marriage as a merger. Or why someone like Ron can hold onto the ideal of a marriage that floats above the fray of cash and contracts even after he's been through a painful divorce in which those very ideals have been tested.

As for Chris, the San Francisco businessman: He won't be putting any more contracts in the recycling bin. "If I get married again," he says, "I'll definitely look into (a prenuptial agreement). I feel like I'd be naive not to."

Rob Baedeker is a writer living in Berkeley. He is the co-author, with the Kasper Hauser comedy group, of SkyMaul, the catalog parody.